Federal Register / Vol. 73, No. 44 / Wednesday, March 5, 2008 / Proposed Rules 11843 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

14 CFR Parts 234, 253, 259, and 399 

[Docket No. DOT–OST–2007–0022] 

RIN No. 2105–AD72 

Enhancing Airline Passenger 

Protections 

AGENCY: Office of the Secretary (OST), 

Department of Transportation (DOT). 

ACTION: Clarification Concerning 

Advance Notice of Proposed 

Rulemaking (ANPRM). 

SUMMARY: On November 20, 2007, the 

Department of Transportation (DOT or 

Department) published an Advance 

Notice of Proposed Rulemaking 

(ANPRM), 72 FR 65233 seeking 

comments on whether the Department 

should adopt a rule to enhance airline 

passenger protections in the following 

ways: Require carriers to adopt 

contingency plans for lengthy tarmac 

delays and incorporate them in their 

contracts of carriage, require carriers to 

respond to consumer problems, deem 

operating a chronically delayed flight to 

be unfair and deceptive, require carriers 

to publish delay data, require carriers to 

publish complaint data, require on-time 

performance reporting for international 

flights, and require carriers to audit 

their compliance with their customer 

service plans. 

In a section of the ANPRM entitled 

‘‘Regulatory Notices’’ the Department 

addressed a number of general 

regulatory issues as they relate to the 

ANPRM, including DOT Regulatory 

Policies and Procedures, Federalism, the 

Regulatory Flexibility Act and the 

Paperwork Reduction Act. In its 

discussion of Executive Order 13132 

(‘‘Federalism’’), which sets forth certain 

requirements for Federal agencies when 

they are ‘‘taking action that preempts 

State law,’’ the ANPRM concluded that 

it ‘‘does not propose any regulation that 

* * * preempts State law.’’ Based upon 

comments DOT has received, and upon 

its own further review, the Department 

has determined that this statement has 

been misconstrued in the overall 

context of the proposed DOT regulation 

and its impact upon State law. This 

notice clarifies the Department’s prior 

statement concerning preemption in this 

area. 

DATES: Comments on the ANPRM were 

due to be filed on or before January 22, 

2008. The Department is currently 

reviewing comments that it has 

received. The Department will further 

address this issue in any Notice of 

Proposed Rulemaking subsequently 

issued by the Department in this docket. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov or to the street 

address listed above. Follow the online 

instructions for accessing the docket. 

FOR FURTHER INFORMATION CONTACT: 

Betsy L. Wolf or Blane A. Workie, Office 

of the Assistant General Counsel for 

Aviation Enforcement and Proceedings, 

U.S. Department of Transportation, 1200 

New Jersey Ave., SE., Washington, DC 

20590, 202–366–9342, 202–366–7152 

(fax), betsy.wolf@dot.gov or 

blane.workie@dot.gov (e-mail). 

SUPPLEMENTARY INFORMATION: The 

Department’s ANPRM sought comment 

on a variety of DOT proposals, 

including: 

(1) Amending 14 CFR part 253 to 

require any certificated or commuter air 

carrier that operates domestic scheduled 

passenger service using any aircraft with 

more than 30 passenger seats to develop 

a contingency plan for long ground 

delays on the tarmac for all of its flights 

(including those that use aircraft with 

30 or fewer seats) and to incorporate 

this plan in its contract of carriage; 

(2) Adopting a new regulation, 14 CFR 

Part 259, that among other things would 

require every certificated and commuter 

carrier that operates domestic scheduled 

passenger service using any aircraft with 

more than 30 passenger seats to respond 

to mounting consumer problems in a 

number of specific ways; 

(3) Amending 14 CFR 399.81 so that 

it sets forth the Department’s 

enforcement posture on chronically 

delayed flights; 

(4) Amending 14 CFR 234.11 to 

require airlines that report on-time 

performance to the Department 

pursuant to 14 CFR part 234 (i.e., 

certificated U.S. carriers that account for 

at least 1% of the domestic scheduled 

passenger revenue) and online 

reservation services to include on their 

Web sites, at a point before the 

passenger selects a flight for purchase, 

specific information for each listed 

flight about its performance during the 

previous month; 

(5) Adopting a new regulation, 14 CFR 

Part 259, that would also require 

certificated and commuter carriers that 

operate domestic scheduled passenger 

service using any aircraft with more 

than 30 passenger seats to publish 

complaint data on their Web sites; 

(6) Amending 14 CFR 234.4 and 

234.11 to require carriers that report ontime performance to the Department 

pursuant to 14 CFR Part 234 (i.e., 

certificated U.S. carriers that account for 

at least 1% of the domestic scheduled 

passenger revenue) and the largest 

foreign carriers to report on-time 

performance for international flights to 

and from the United States; and 

(7) Adopting a new regulation that 

would require certificated and 

commuter carriers that operate domestic 

scheduled passenger service using any 

aircraft with more than 30 passenger 

seats to audit their adherence to their 

own customer service plans. 

Detailed discussions concerning each 

of these proposals are set forth in the 

November 20, 2007 ANPRM. 

In the ‘‘Regulatory Notices’’ section of 

the ANPRM the Department addressed a 

number of regulatory issues. Matters 

relating to Executive Order 13132 were 

addressed as follows: 

This Advance Notice of Proposed 

Rulemaking has been analyzed in accordance 

with the principles and criteria contained in 

Executive Order 13132 (‘‘Federalism’’). This 

notice does not propose any regulation that 

(1) has substantial direct effects on the States, 

the relationship between the national 

government and the States, or the 

distribution of power and responsibilities 

among the various levels of government, (2) 

imposes substantial direct compliance costs 

on State and local governments, or (3) 

preempts State law. Therefore, the 

consultation and funding requirements of 

Executive Order 13132 do not apply. 

72 FR 65236 (emphasis supplied). After 

further review, including initial review 

of comments submitted to the 

Department in response to the ANPRM, 

the Department has concluded that our 

prior statement addressing preemption 

of State regulations concerning air 

carrier operations has been 

misconstrued. 

Executive Order 13132 sets forth 

certain requirements for Federal 

agencies when they are ‘‘taking action 

that preempts State law.’’ Promulgation 

of a Final Rule incorporating the 

Department’s proposals on enhancing 

airline passenger protections as set forth 

in the ANPRM, or other proposals 

addressing the matters giving rise to the 

ANPRM, would not ‘‘tak[e] action that 

preempts State law’’ because such State 

or local laws are already preempted 

under the Airline Deregulation Act 

(ADA), which provides at 49 U.S.C. 

41713(b)(4)(A), that ‘‘a State, political 

subdivision of a State, or political 

authority of 2 or more States may not 

enact or enforce a law, regulation, or 

other provision having the force and 

effect of law related to a price, route, or 

service of an air carrier.’’ The Supreme 

Court has consistently interpreted the 

ADA broadly so as to preclude any 

regulation of airline services other than 

by the Federal government. See Morales 


yshivers on PROD1PC62 with PROPOSALS
11844 Federal Register / Vol. 73, No. 44 / Wednesday, March 5, 2008 / Proposed Rules 

v. Trans World Airlines, Inc., 504 U.S. 

374, 378 (1992); American Airlines, Inc. 

v. Wolens, 5113 U.S. 219 (1995). This 

broad view has most recently been reaffirmed in Rowe v. New Hampshire 

Motor Transport Assoc., lS. Ct. l, 

2008 WL 440686, U.S., February 20, 

2008 (No. 06–457). 

For the foregoing reason, any State or 

local rules addressing, or related to, the 

services offered by air carriers are 

already preempted under the ADA. In 

addition, if the proposed rule addressed 

in the ANPRM is finalized, it is likely 

that the final rule would also separately 

preempt any such State or local 

regulations under other provisions of 

law. We need not further address any 

other grounds for preemption, 

particularly at the ANPRM stage, since, 

as explained above, States and localities 

are already precluded from regulating in 

this area. 

Issued this 3rd day of March, 2008, at 

Washington, DC. 

Michael W. Reynolds, 

Acting Assistant Secretary for Aviation and 

International Affairs. 

[FR Doc. 08–969 Filed 3–3–08; 11:13 pm] 

BILLING CODE 4910–9X–P 

FEDERAL TRADE COMMISSION 

16 CFR Ch. I 

Notice of Intent to Request Public 

Comments 

AGENCY: Federal Trade Commission. 

ACTION: Notice of intent to request 

public comments. 

SUMMARY: As part of its ongoing 

systematic review of all Federal Trade 

Commission rules and guides, the 

Commission gives notice that, during 

2008, it intends to request public 

comments on the rules and guide listed 

below. The Commission will request 

comments on, among other things, the 

economic impact of, and the continuing 

need for, the rules and guide; possible 

conflict between the rules and guide 

and state, local, or other federal laws or 

regulations; and the effect on the rules 

and guide of any technological, 

economic, or other industry changes. No 

Commission determination on the need 

for, or the substance of, the rules and 

guide should be inferred from the notice 

of intent to publish requests for 

comments. In addition, the Commission 

announces a revised 10-year regulatory 

review schedule. 

FOR FURTHER INFORMATION CONTACT: 

Further details may be obtained from 

the contact person listed for the 

particular rule or guide. 

SUPPLEMENTARY INFORMATION: The 

Commission intends to initiate a review 

of and solicit public comments on the 

following rules and guide during 2008: 

(1) Guides for the Use of 

Environmental Marketing Claims, 16 

CFR 260. Agency Contact: Janice Podoll 

Frankle, (202) 326-3022, Federal Trade 

Commission, Bureau of Consumer 

Protection, Division of Enforcement, 600 

Pennsylvania Ave., NW, Washington, 

DC 20580. 

(2) Rule Concerning Cooling-Off 

Period for Sales Made at Homes or at 

Certain Other Locations, 16 CFR 429. 

Agency Contact: Barbara Bolton, (404) 

656-1362, Federal Trade Commission, 

Southeast Region, 225 Peachtree Street, 

NE, Suite 1500, Atlanta, GA 30303. 

(3) Power Output Claims for 

Amplifiers Utilized in Home 

Entertainment Products, 16 CFR 432. 

Agency Contact: Jock Chung, (202) 326- 

2984, Federal Trade Commission, 

Bureau of Consumer Protection, 

Division of Enforcement, 600 

Pennsylvania Ave., NW, Washington, 

DC 20580. 

As part of its ongoing program to 

review all current Commission rules 

and guides, the Commission also has 

tentatively scheduled reviews of 

additional rules and guides for 2009 

through 2018. A copy of this tentative 

schedule is appended. The Commission, 

in its discretion, may modify or reorder 

the schedule in the future to incorporate 

new rules, or to respond to external 

factors (such as changes in the law) or 

other considerations. 

Authority: 15 U.S.C. 41-58. 

By direction of the Commission. 

Donald S. Clark, 

Secretary. 

APPENDIX 

REGULATORY REVIEW 

MODIFIED TEN-YEAR SCHEDULE 

16 CFR PART TOPIC YEAR TO 

REVIEW 

254 Guides for Private Vocational and Distance Education Schools .............................................................................. 2009 

300 Rules and Regulations under the Wool Products Labeling Act ............................................................................... 2009 

301 Rules and Regulations under the Fur Products Labeling Act .................................................................................. 2009 

303 Rules and Regulations under the Textile Fiber Products Identification Act ............................................................. 2009 

306 Automotive Fuel Ratings, Certification and Posting Rule ......................................................................................... 2009 

425 Rule Concerning the Use of Negative Option Plans ................................................................................................ 2009 

500 Regulations Under Section 4 of the Fair Packaging and Labeling Act (FPLA) ....................................................... 2010 

501 Exemptions from Part 500 of the FPLA .................................................................................................................... 2010 

502 Regulations Under Section 5(C) of the FPLA .......................................................................................................... 2010 

503 Statements of General Policy or Interpretations Under the FPLA ........................................................................... 2010 

424 Retail Food Store Advertising and Marketing Practices Rule .................................................................................. 2010 

444 Credit Practices Rule ................................................................................................................................................ 2010 

239 Guides for the Advertising of Warranties and Guarantees ...................................................................................... 2010 

433 Preservation of Consumers’ Claims and Defenses Rule ......................................................................................... 2010 

700 Interpretations of Magnuson-Moss Warranty Act ..................................................................................................... 2010 

701 Disclosure of Written Consumer Product Warranty Terms and Conditions ............................................................. 2010 

702 Pre-sale Availability of Written Warranty Terms ....................................................................................................... 2010 

703 Informal Dispute Settlement Procedures .................................................................................................................. 2010 

14 Administrative Interpretations, General Policy Statements, and Enforcement Policy Statements .......................... 2011 

23 Guides for the Jewelry, Precious Metals, and Pewter Industries ............................................................................. 2011 

423 Care Labeling Rule ................................................................................................................................................... 2011 

20 Guides for the Rebuilt, Reconditioned and Other Used Automobile Parts Industry ................................................ 2012 

233 Guides Against Deceptive Pricing ............................................................................................................................ 2012 

238 Guides Against Bait Advertising ............................................................................................................................... 2012 


yshivers on PROD1PC62 with PROPOSALS